01A15303_r
08-27-2002
Heather J. Biblow, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Heather J. Biblow v. Department of Transportation
01A15303
August 27, 2002
.
Heather J. Biblow,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A15303
Agency No. 2-00-2011
DECISION
Complainant filed a timely appeal with this Commission from the agency
decision dated August 14, 2001, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. In her complaint, complainant alleged that she
was subjected to discrimination on the bases of race, sex, and age when,
on May 25, 1999, the Federal Aviation Administration (FAA) initiated
"Movement Rules" and a position classification study that disparately
impacted older employees (by treating FG-2152 Headquarters employees
differently than field facility employees) and restricted complainant's
career and her ability to increase her salary.
On March 20, 2000, the agency dismissed the complaint for untimeliness and
failure to state a claim, and complainant appealed to the Commission.
In a May 30, 2001 decision, the Commission found that the agency
had misconstrued the complaint by treating background information as
separate claims and that, as redefined, complainant's complaint stated
a timely claim. EEOC Appeal No. 01A03430 (May 30, 2001). After the
complaint was remanded for processing, the agency issued the August 14,
2001 decision here appealed.
In the instant case, the agency again dismissed the complaint pursuant to
29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically,
the agency once more found that the claim raised a general grievance,
not an individual harm suffered by complainant. The agency apparently
reasoned that, as complainant shared her claim concerning lost pay and
career restrictions with all Headquarters FG-2152 staff, her claim did
not constitute an individualized harm.
As in our previous review of this case, we find that the agency improperly
dismissed complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1).
In the present case, complainant asserts a claim that she is personally
harmed by the effect of the Movement Rules because she was prevented
from receiving the same pay as others in the same FG-2152 job series, and
because her career and the ability to increase her salary was restricted.
As complainant identified a specific injury with respect to the terms and
conditions of her employment, we find that she has stated a claim. See
Crandall v. Department of Veterans Affairs, EEOC Request No. 05970508
(September 11, 1997); Coleman v. Department of Transportation, EEOC
Request No. 05A10034 (February 28, 2001).
We also note that, on appeal, the agency contends that complainant's
claim of disparate impact based on age is not cognizable and thus fails
to state a claim. Although certain Courts have concluded that claims of
disparate impact in age discrimination complaints are not cognizable,
the Commission has ruled that a complainant can state a claim of
discrimination using the disparate impact theory under the ADEA. Parker
v. Department of the Navy, EEOC Request No. 05970486 (March 25, 1999);
Mitchell v. Department of the Interior, EEOC Appeal No. 01990787 (January
10, 2002) (citations omitted). Therefore, as part of its investigation,
the agency shall investigate complainant's age-based claim under the
disparate impact theory of discrimination.
Accordingly, the agency's dismissal of complainant's complaint is REVERSED
and the complaint is REMANDED for further investigation in accordance
with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 27, 2002
__________________
Date